State Authority to Protect Wildlife Preserved As Supreme Court Finally Overturns Geer v. Connecticut

The doctrine of state ownership of wildlife, as enunciated in the late 19th century United States Supreme Court decision in Geer v. Connecticut,¹ has long been used to justify state restrictions on the taking of wildlife, particularly measures which discriminate against nonresidents. In the last half century, however, the Court's decisions have chipped away at the Geer rationale while preserving its result, thus creating an anomaly in the law. When the Court finally abandoned Geer altogether on April 24, it came almost as an anticlimax. In Hughes v. Oklahoma,² the Court overruled Geer in the process of holding thatt an Oklahoma law banning the export for sale of minnows obtained in the state violated the Commerce Clause of the United States Constitution.³

The final demise of the Geer doctrine is of limited significance in light of its gradual erosion over the years. Indeed, Hughes may have little actual effect on the authority and wildlife management practices of the states, as decisions by the Supreme Court in recent years have already gone far to eliminate discriminatory regulation in this area. Nonetheless, the case stands as an important statement of the relationship between the states and wildlife within their borders, and in this respect it will undoubtedly assume heightened significance as the ever-expanding federal wildlife program continues to crowd what had once been the states' exclusive domain.

Hughes solidifies a clear distinction in wildlife jurisprudence. The states continue to have wide latitude to regulate the taking of wildlife for conservation purposes provided there is no unjustified discrimination against nonresidents. Once the wildlife is lawfully taken, however, it becomes an article of commerce subject to the protection of the Constitution's Commerce Clause. From that point on, the states have little leeway to restrict disposition. Thus, measures to conserve wildlife should be direct restrictions on hunting or harvesting rather than indirect prohibitions against exploitation of wildlife that has been lawfully reduced to possession.

Geer v. Connecticut

At issue in Geer, decided in 1896, was the validity of a Connecticut statute prohibiting the export of wild birds killed within the state. Geer, who was convicted of possessing certain game birds with the intent to export them, argued in his defense that this law violated the Commerce Clause, which gives Congress the power "to regulate commerce … among the several states." Thus, he contended, if there was to be regulation of the interstate transportation of game birds, it was a function of Congress, not the State of Connecticut, to do so. The Supreme Court upheld the state law and rejected Geer's argument.

Writing for the majority, Justice White first traced judicial cognizance of the "attribute of government to control the taking of animals ferae naturae" from Roman law through English and ultimately American common law. Justice White found that wildlife was held in common ownership by the citizens of a state, with control lodged in the sovereign to be exercised "as a trust for the benefit of the people."⁴ He noted that most states had passed laws for the protection and preservation of game and that numerous cases had upheld the right of states to control and regulate the public interest in game. Arising from this constructive state ownership for the common benefit, he reasoned, was a concomitant state power to regulate the killing and sale of game. In addition, he held, the "common ownership imports the right to keep the property, if the sovereign so chooses, always within its jurisdiction for every purpose."⁵ If, as Connecticut had done, the state exercised this power to prohibit export, the game could rightfully be withheld from the stream of interstate commerce, as distinguished from internal commerce. It was on this basis that the Geer majority held that federal Commerce Clause principles were inapposite to the litigation, and Geer's Commerce Clause defense was rejected.

In dissent, Justices Field and Harlan disputed the majority's perception of the scope of a state's control over wildlife. Acknowledging that a state may protect [9 ELR 10107] wild game for its preservation "or for the comfort, health, or security of its citizens," the dissenters nevertheless contended that such state measures may not undercut Congress' power to regulate interstate commerce. Justice Field agreed with the notion that property rights can not attach to an animal as long as it remains in the wild. Once that animal is killed for food or other human uses, however, he argued that "it becomes an article of commerce, and its uses cannot be limited to the citizens of one state to the exclusion of the citizens of another state."⁶

Thus, the dissenters were concerned less with the question of state "ownership" of wildlife than with the viability of the state's interest where it disrupts the federal scheme of commerce. They took the position that a wild animal becomes an item of commerce when captured or killed and that a state may not obstruct the movement of such articles in derogation of the Commerce Clause. The majority, on the other hand, upheld Connecticut's export restriction because the state was found effectively to have prevented the game from entering the stream of commerce. Thus, the state's "ownership" interest was held to prevail against the conflicting limitations of the Commerce Clause; it was this aspect of the decision that so strongly influenced the Supreme Court's molding of wildlife law in subsequent years.

Subsequent Treatment of Geer Theory

In 1912, the state ownership doctrine developed in Geer reached a high water mark when it was applied to bar federal regulation of wildlife inside the boundary of Florida's territorial waters.⁷ Subsequently, however, the Court began to delineate exceptions that ate away at the eminence of state regulatory powers. These exceptions were usually based on a number of constitutional provisions other than the Commerce Clause.

For example, in Missouri v. Holland,⁸ the Court ruled that state wildlife laws must bow to federal regulation of wildlife that is based on the federal treaty-making power. In the course of upholding the constitutionality of the Migratory Bird Treaty Act,⁹ which implemented the treaty with Great Britain on the protection of migratory birds,¹⁰ Justice Holmes penned his famous rejoinder to the state's claim of exclusive authority based upon assertion of title:

To put the claim of the State upon title is to lean upon a slender reed. Wild birds are not in the possession of anyone, and possession is the beginning of ownership ….¹¹

The Constitution's Property Clause has also evolved as the basis for an exception to the state ownership concept where it conflicts with federal wildlife regulation on federal lands. The Court has acknowledged that the government's interest in protecting federal lands is a sufficient basis for regulating wildlife on those lands and preempting state regulation.¹²

This pattern of finding constitutional authority for federal preemption of wildlife regulation has been paralleled by the Court's invalidation on constitutional grounds of state wildlife restrictions that discriminate against citizens from another state in obtaining hunting or fishing permits. The thrust of this line of case law has focused on the Privileges and Immunities Clause.¹³ In general, the Court has overturned discriminatory licensing schemes which govern the commercial harvesting of wildlife on the rationale that engaging in commerce as a livelihood is a fundamental right that can not be abridged by discriminatory state laws.¹⁴

The Privileges and Immunities Clause will not always invalidate state wildlife regulations that discriminate against nonresidents, however, as shown by the Court's decision last Term in Baldwin v. Fish and Game Commission.¹⁵ In that case, the Court upheld Montana's differential licensing fee structure for nonresident elk hunters on the ground that elk hunting was a recreational activity and not a fundamental right protected by the Privileges and Immunities Clause. Citing Geer, the Court noted Montana's special interest in preserving and managing its elk population as a legitimate purpose. Because recreation is not a fundamental right, however, state measures restricting nonresident access do not receive strict scrutiny. The Court concluded that the Montana fee system, though imprecisely drawn, did not violate the Equal Protection Clause¹⁶ because it was rationally related to furtherance of the legitimate state purpose.

Because Geer so emphatically endorsed the concept that a state could legislatively withhold wildlife from the stream of interstate commerce, the Court, until Hughes, was reluctant to explore the Commerce Clause limitations on the states' regulatory powers. Exceptions to Geer on this basis have been made, however. In Foster-Fountain Packing Co. v. Haydel,¹⁷ the Court held that a state's attempt to block export of its wildlife was unavailing once it had allowed the wildlife to enter the stream of interstate commerce. In that case, Louisiana prohibited the export of shrimp until certain parts were removed. In overturning this law, the Court distinguished Geer because Connecticut had not allowed any part of the game to enter interstate commerce.

More recently, the Court struck down Virginia's discriminatory licensing law for commercial fishing.¹⁸ [9 ELR 10108] The Court's basis for its decision was federal legislation that preempted state law, but the Court stated in dicta that the Commerce Clause could override a state's title or ownership interest in the fish swimming in its waters. Furthermore, the Court summarized and clearly embraced the modern attitude towards Geer's ownership doctrine:

A State does not stand in the same position as the owner of a private game preserve and it is pure fantasy to talk of "owning" wild fish, birds, or animals. Neither the States nor the Federal Government, any more than a hopeful fisherman or hunter, has title to these creatures until they are reduced to possession by skillful capture. [Citing to Missouri v. Holland and Justice Field's dissent in Geer.] The "ownership" language of cases such as those cited by appellant must be understood as no more than a 19th-century legal fiction expressing "the importance to its people that a State have power to preserve and regulate the exploitation of an important resource." [Citations omitted.]¹⁹

Even in Baldwin last year, the Court noted specifically that "States may not compel the confinement of the benefits of their resources, even their wildlife, to their own people whenever such hoarding and confinement impedes interstate commerce."²⁰

Hughes v. Oklahoma

Perhaps because the Court had opted to circumvent Geer indirectly for so long, it was reluctant to overrule it. Hughes,²¹ however, was a case on all fours: a state prohibition on the export of wildlife obtained legally in the state. Hughes, who operated a commercial minnow business in Texas, challenged the constitutionality of the statute when he was arrested and subsequently convicted of attempting to export a load of natural minnows purchased from an Oklahoma dealer.

The Oklahoma Court of Criminal Appeals affirmed the conviction.²² Under the authority of Geer, the court ruled that Oklahoma in its sovereign capacity owned the wildlife within its borders for the common benefit of all its citizens: therefore, it could regulate the taking and subsequent use of the minnows by defining and restricting private property rights in the wildlife. The Oklahoma court distinguished Foster-Fountain on the ground that Oklahoma had simply refused to allow natural minnows to enter the stream of interstate commerce. Thus, the court did not undertake a full Commerce Clause analysis, merely noting that the state's intention to use the restriction "to protect against the depletion of minnows in Oklahoma's natural streams through commercial exploitation" was "not repugnant to the commerce clause."²³

In reversing the Oklahoma decision, the Supreme Court first noted that the view of the Geer dissenters, i.e., that game lawfully killed or captured for human uses becomes an article of commerce and canno be reserved for the exclusive use of citizens of one state, has increasingly been adopted in cases involving staterestricions on the export of indigenous natural resources other than wildlife.²⁴ The culmination of this line of cases is Pike v. Bruce Church, Inc.,²⁵ a 1970 decision that provides a standard by which to test state resource regulation under the Commerce Clause: restrictions on exports of such resources will be tolerated only if the local public interest is legitimate, the effects on interstate commerce are incidental, and the burden on interstate commerce is not excessive in relation to the local benefits.²⁶

The Court then applied the Pike formula to the Oklahoma statute and found that the measure violated the Commerce Clause. In the first place, the state law discriminated against interstate commerce on its face. The intentional discrimination, the Court held, called for strict scrutiny not only of the character of the local interest but also of the availability of less discriminatory alternatives. In this instance, the Court explained, Oklahoma discriminated directly against interstate commerce without showing, for example, that alternatives such as a limitation on the taking of natural minnows by everyone or a limitation on in-state disposition might accomplish the same conservation purpose. This choice of the most discriminatory conservation method was thus unjustified and constituted a Commerce Clause violation.

The Court further noted that Geer had been eroded "to the point of virtual extinction" in cases involving state regulation of wild animals and could now be used to justify only a complete ban on commerce at the state's borders. Overruling Geer thus accomplished two important objectives in the Court's eyes. First, it put state regulation of wild animals on the same footing as state regulation of other natural resources by establishing that both situations are governed by the same Commerce Clause principles. Second, it dispensed with the anomaly under Geer that the heaviest burden on interstate commerce, i.e., total embargoes, were most insulated from a Commerce Clause challenge.

The Court emphasized that despite the demise of Geer, a state is still allowed to regulate to protect the wild animals within its borders because wildlife conservation is a legitimate state interest. When wild animals are taken, however, they become articles of commerce, and the state's interest can no longer justify forcing nonresidents to bear the entire conservation burden, particularly when equally effective, less discriminatory options are available.

Justice Rehnquist dissented,²⁷ arguing the Geer need not have been overturned.In his view, decisions subsequent to Geer have recognized that the ownership doctrine is "simply a shorthand way" of describing the state's legitimate and substantial interest in conserving wildlife for the benefit of its citizens. The Court, he argued, has recognized this interest to justify state regulations which conserve other natural resources. Furthermore, Justice Rehnquist contended that where there is no [9 ELR 10109] conflicting federalregulation, a heavy burden of proof should be placed on the challenger of the state regulation. In his view, the Oklahoma statute is neither onerous nor discriminatory and would survive a proper application of Commerce Clause analysis.

Discussion

The overruling of Geer may well have been long overdue for several reasons, not the least of which is the evolution in governmental protection of wildlife. In the 19th century, there was very little federal involvement in this activity. It was thus up to the states to protect and conserve what was then seen as a valuable food source.Today, not only does wildlife play a much smaller role in providing food but the federal entry into the arena of wildlife protection has been extensive.²⁸ The burgeoning federal wildlife law has thus to some extent relieved the states of their protective responsibilities in a number of areas. The demise of Greer may represent a final and insurmountable barrier to the success of any state effort to regulate wildlife in the face of conflicting federal regulation.²⁹

As Hughes emphasized, however, the states are not powerless to protect wildlife. In the first place, the trend in federal wildlife law is to develop cooperative federal-state management programs.³⁰ Second, and more important, the states retain broad authority to regulate extensive sport and commercial taking of their wildlife, and there is no reason to believe that this will change in the wake of Hughes. Rather, the thrust of the decision is simply that no state regulatory measure, whether it deals with coal, timber, or wildlife, may improperly burden the flow of goods in interstate commerce.³¹

The basis for such state wildlife regulation continues to be the states legitimate interest in wildlife conservation as a trustee.³² Geer unfortunately came to be interpreted as labeling this an "ownership" interest, but the Hughes Court rightly discarded that notion as an anachronistic legal fiction. Whether or not Justice Rehnquist was correct in arguing that Geer need not have been overruled rather than reinterpreted, he has a valid point in asserting that "ownership" was from the start simply shorthand for a substantial and legitimate state interest in wildlife protection. Although not as formal and sweeping as fee ownership, this "trusteeship" interest nevertheless authorizes enactment of vigorous conservation measures.³³

The Court's decision in Hughes raises initial questions as to the continued vitality of its holding last year in Baldwin, which validated, largely on the basis of the Geer ownership doctrine, a state's higher license fee for nonresident elk hunters. The activity regulated in Baldwin was recreational, as opposed to the clearly commercial activity that had run afoul of the state law in Hughes. Arguably, this distinction is more apparent than real because recreational opportunities are in fact intimately related to interstate commerce.³⁴ Restrictions against nonresidents regarding the availability of recreational activities limit both interstate travel and commercial activities ancillary to that type of recreation. It might have been illuminating for the Baldwin Court to have elaborated a Commerce Clause argument because of the real, though indirect, connection between commerce and recreation. A review of each case, however, shows that because of differences in the statutes challenged, the Court utilized different legal principles to resolve them and will likely continue to follow the same approach in the future.

When juxtaposed with Baldwin, Hughes makes it clear that the Court's approach to testing the validity of state wildlife laws varies according to the type of activity being regulated and the point at which the regulation takes effect. State restrictions on access to wildlife, such as license requirements and fees, will be judged on the basis of the Privileges and Immunities Clause, providing equal treatment for the citizens of the different states.Limitations on commercial harvesting which impinge on the livelihood of those concerned will be strictly scrutinized to avoid unfairness to nonresidents. On the other hand, states have broader discretion to favor their own citizens at the expense of nonresidents in fashioning restrictions on recreational activities, such as sport hunting. Hughes demonstrates, however, thatt in either instance once an [9 ELR 10110] animal is killed or captured, it becomes personal property and an article of commerce to the same extent as any other natural resource. State regulation of its disposition is thereafter strictly limited by the Commerce Clause, and the analysis will not turn on whether the activity constitutes recreation or the seeking of a livelihood.

Hughes goes far to ease the unnatural tension which previously characterized wildlife law because of Geer. While it overrules the latter decision, its effect is narrower than that. To be precise, Hughes reverses the result in Geer insofar as it held that a state's trust powers over wildlife within its borders enabled it to prevent captured animals from entering the flow of commerce and to erect export barriers that are immune from Commerce Clause attack. The Court's latest pronouncement merely reminds the states that restrictions on the disposal of natural resources must be consistent with their role in the federal system.

Hughes does not, on the other hand, erode the crucial doctrinal foundation of Geer, that wildlife in its natural state remains subject to the state's strong trusteeship. It is this aspect of Geer which is more important because it gives crucial support to the result in many non-Commerce Clause cases such as Baldwin. Hughes is, therefore, more of a victory for the Commerce Clause³⁵ than a defeat for state conservation programs and should not pose a threat to state conservation laws which, though harshly protective, do not unduly burden interstate commerce.

1. 161 U.S. 519 (1896).

2. 47 U.S.L.W. 4447, 9 ELR 20360 (U.S. Apr. 24, 1979).

3. U.S. CONST. art. I, § 8, cl. 3.

4. 161 U.S. at 529.

5. Id. at 530.

6. Id. at 542.

7. The Abby Dodge, 223 U.S. 166 (1912).

8. 252 U.S. 416 (1920).

9. 16 U.S.C. §§ 703-711.

10. Convention for the Protection of Migratory Birds, Aug. 16, 1916, United States-Great Britain (on behalf of Caanda), 39 Stat. 1702, T.S. No. 628.

11. 252 U.S. at 434.

12. Kleppe v. New Mexico, 426 U.S. 529, 6 ELR 20545 (1976).

13. U.S. CONST. art. IV, § 2: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."

14. Toomer v. Witsell, 334 U.S. 385 (1948); Takahashi v. Fish and Game Commission, 334 U.S. 410 (1948).

15. 436 U.S. 371, 8 ELR 20425 (1978). See also Comment, Supreme Court Finds Broad State Power to Limit Nonresident Access to Recreational Resources, 8 ELR 10136 (1978).

16. U.S. CONST. amend. XIV, § 1.

17. 278 U.S. 1 (1928).

18. Douglas v. Seacoast Products, Inc., 431 U.S. 265, 7 ELR 20442 (1977). The Virginia law allowed only United States citizens to be issued commercial fishing licenses.

19. 431 U.S. at 284.

20. 436 U.S. at 385-86.

21. 47 U.S.L.W. 4447, 9 ELR 20360 (U.S. Apr. 24, 1979).

22. 572 P.2d 573 (Okla. Crim. App. 1978).

23. Id. at 575.

24. H.P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525 (1949) (milk); Pennsylvania v. West Virginia, 262 U.S. 553, 598-600 (1923) (natural gas); West v. Kansas Natural Gas Co., 221 U.S. 229 (1911) (natural gas).

25. 397 U.S. 137 (1970).

26. Id. at 142.

27. 47 U.S.L.W. at 4452, 9 ELR 20365. Chief Justice Burger joined in the dissent.

28. See, e.g., Lacey Act, 18 U.S.C. §§ 42-44 (enacted in 1900; prohibits interstate transportation of wildlife killed in violation of state law); Endangered Species Act, 16 U.S.C. §§ 1531-1543, ELR STAT. & REG. 41825; Bald and Golden Eagle Protection Act, 16 U.S.C. §§ 668-668d, ELR STAT. & REG. 41814. In the most authoritative book to date on wildlife law in the United States, the author discusses more than 40 federal laws having an impact on wildlife protection. M. BEAN, THE EVOLUTION OF NATIONAL WILDLIFE LAW (1977).

29. In a recent decision, the federal district court in Nebraska upheld the constitutionality of the Airborne Hunting Act, 16 U.S.C. § 742j-1, which had been challenged on the basis of Geer. United States v. Bair, 9 ELR 20324 (D. Neb. Feb. 14, 1979). Almost all states have laws regulating airborne hunting. An earlier decision of the federal district court in Montana reached the opposite conclusion, however. That court found that the Tenth Amendment to the Constitution reserved certain powers to the states, and, under Geer, wildlife regulation is one of those powers. United States v. Helsley, 463 F. Supp. 1111, 9 ELR 20326 (D. Mont. Jan. 11, 1979). The Helsley decision is presently on appeal to the Ninth Circuit Court of Appeals.

30. See, e.g., Endangered Species Act § 6, 16 U.S.C. § 1535, ELR STAT. & REG. 41828; Marine Mammal Protection Act, 16 U.S.C. § 1379, ELR STAT. & REG. 41820.

31. The Pike decision lays out the boundaries of a permissive burden. See note 26 supra.

32. One commentator has persuasively argued that this trust relationship can be exercised by the state suing to recover damages for wildlife harmed by environmental pollution. BEAN, supra note 28, at 34-45.

33. One commentator has suggested that Baldwin represents merely the Court's solicitude for a state's efforts to protect its environment. L. TRIBE, AMERICAN CONSTITUTIONAL LAW 40 (1979 Supp.).

34. The relationship between recreation and commerce is vivid: in 1970, 36 million people drove 38 billion miles and spent $7 billion while hunting and fishing. In 1972, recreation-related businesses grossed $13 billion and employed half a million people. COUNCIL ON ENVIRONMENTAL QUALITY, ANNUAL REPORT 468-71 (1975). One commentator in the wildlife area has tied species preservation to a healthy national ecosystem to healthy commerce by citing Zabel v. Tabb, 430 F.2d 199, 204, 1 ELR 20023, 20025 (5th Cir. 1970), cert. denied, 401 U.S. 910 (1971) ("the destruction of fish and wildlife in our estuarine waters does have a substantial, and in some areas a devastating, effect on interstate commerce"). Swift, Endangered Species Act: Constitutional Tensions and Regulatory Discord, 4 COL. J. OF ENVT'L L.97, 113 n.82 (1977).

35. Indeed, Geer could not have been overruled without the development of the Court's Commerce Clause approach that has taken place in the last half century. In this respect, Geer was ripe for overruling to bring wildlife law in line with the Court's modern approach to the Commerce Clause. Certainly Hughes recognizes that wildlife is encompassed within the term "natural resources" as the Court has judged state regulation of other natural resources from the Commerce Clause perspective. See cases cited at note 24 supra. This recognition may have been presaged by the Court's reference to interstate commerce in the Baldwin decision. See quote in text at note 20 supra.